SZSIF v Minister for Immigration and Citizenship
[2013] FCA 855
•1 August 2013
FEDERAL COURT OF AUSTRALIA
SZSIF v Minister for Immigration and Citizenship [2013] FCA 855
Citation: SZSIF v Minister for Immigration and Citizenship [2013] FCA 855 Appeal from: SZSIF & Anor v Minister for Immigration & Anor [2013] FCCA 93 Parties: SZSIF AND SZSIG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL File number: NSD 736 of 2013 Judge: FARRELL J Date of judgment: 1 August 2013 Catchwords: MIGRATION – judicial review – Refugee Review Tribunal – Federal Circuit Court – no appearance of appellants at hearing – appeal dismissed under r 36.75(1)(a) of the Federal Court Rules 2011 (Cth) Legislation: Federal Court Rules 2011 (Cth) r 36.75(1)(a)
Migration Act 1958 (Cth)Cases cited: SZSIF & Anor v Minister for Immigration & Anor [2013] FCCA 93 Date of hearing: 1 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 9 Counsel for the Appellants: The Appellants did not appear Solicitor for the First Respondent: Ms M Stone of DLA Piper Counsel for the Second Respondent: The Second Respondent submits save as to costs
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 736 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSIF
First AppellantSZSIG
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
1 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellants pay the first respondent’s costs of the proceedings.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 736 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZSIF
First AppellantSZSIG
Second Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE:
1 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 1 August 2013, I dismissed an appeal by the appellants commenced by a notice of appeal filed on 2 May 2013. The appellants appealed from a judgment of the Federal Circuit Court of Australia delivered on 10 April 2013 (the Federal Magistrates Court became the Federal Circuit Court on 12 April 2013 and I will use that terminology). The Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) dated 30 October 2012: SZSIF & Anor v Minister for Immigration & Anor [2013] FCCA 93.
The appellants appealed from the whole of the judgment of the Federal Circuit Court. Their grounds were:
1. Federal Magistrate Judge Emmett failed to consider the second respondent [Tribunal] acted in breach of the rules of procedural fairness.
2. The second respondent had bias against me in making the decision.
The appellants are married and are Malaysian citizens. On 12 July 2012, the male appellant applied for a Protection (Class XA) visa and the female appellant applied as a member of his family unit. The male appellant claimed to fear persecution in Malaysia because of his Chinese ethnicity. He claimed to have suffered discrimination and to have been threatened with harm by ethnic Malays, and to have sought police assistance, but the police did not want to help him.
The decision of the Tribunal was made on the papers due to the failure of the appellants to attend at hearings set down by the Tribunal. By letter dated 17 September 2012, the appellants were invited by the Tribunal to attend a hearing on 15 October 2012. On 12 October, the Tribunal received via facsimile a copy of its hearing invitation, a page of the male appellant’s passport and a letter from a radiation oncology registrar at Sydney Cancer Centre which stated that the male appellant was undergoing treatment and that his radiotherapy would start in approximately two weeks. On 15 October, the Tribunal spoke to the radiation oncology registrar who said that in her opinion the male appellant was well enough to participate in the Tribunal hearing until his treatment started, which would happen in November. The appellants did not attend the 15 October hearing. On that day, the Tribunal wrote to the appellants and invited them to attend a hearing on 24 October, saying that the postponement of the hearing would only be granted if they provided evidence of a specific reason why they would not be able to attend and give evidence on that day (warning). The Tribunal was not able to proceed on 24 October for reasons of the availability of the presiding member, so it wrote to the appellants on 17 October inviting them to attend a hearing scheduled for 29 October and the letter contained the warning. Also on 17 October, the Tribunal received a facsimile copy of its invitation letter dated 15 October and a copy of a letter from a medical oncologist from the Sydney Cancer Centre stating that the male appellant would start radiation therapy in two weeks. On 18 October, the Tribunal spoke to the medical oncologist who said the appellant was well enough to attend the Tribunal hearing until he commenced therapy which would not start until 31 October. On 25 October, the Tribunal received a facsimile copy of the hearing invitation dated 17 October and another copy of the medical oncologist’s letter. On 26 October, the Tribunal again spoke to the medical oncologist who confirmed that the appellant would not start treatment until 31 October and that there was no health reason why the appellant would be unable to participate in a hearing until then. The appellants did not attend the hearing on 29 October.
The appellants did not appear at the hearing of the appeal in this Court. When the time set for the hearing had passed, a court officer contacted the male appellant by phone. He informed the court officer that the appellants were unable to attend as they are working.
The representative for the first respondent made an application for an order that the appeal be dismissed on the basis of the appellants’ non-attendance pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). That rule relevantly provides that:
If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a) if the absent party is the appellant:
(i)the appeal be dismissed; or
(ii)the hearing be adjourned; or
(iii) the hearing proceed only if specified steps are taken;
…
The material set out below is an expanded version of what I said in dismissing the appeal.
It might have been open to the Court to defer the hearing of the appeal, but the manner in which the appellants engaged with the appeal is consistent with the manner in which the appellants engaged or failed to engage with the Tribunal. Upon my reading of the reasons of the Tribunal and the reasons of the Federal Circuit Court judge, it is my view that the appellants have had every opportunity to present argument and evidence before the Tribunal. It is the obligation of the appellants to provide to the Tribunal and to this Court the evidence and arguments on which they seek to rely but they have not done so. I believe that they have had good and, in the case of the Tribunal, extremely sympathetic opportunities to have their applications heard and dealt with in accordance with the processes prescribed by the Migration Act 1958 (Cth).
The first ground of appeal to this Court was not raised before the Federal Circuit Court. On my reading of the decision record of the Tribunal, I do not perceive any failure by the Tribunal to afford the appellants procedural fairness nor is there any evidence of apparent or actual bias. Nor do I perceive any error in the reasons of the Federal Circuit Court. Having read the Tribunal’s reasons, the male appellant’s visa application and the statement attached to it and the reasons of the Federal Circuit Court I consider that the appeal had no reasonable prospect of success and accordingly I dismiss it and order that the appellants’ pay the first respondent’s costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 22 August 2013